Plus, it is at least questionable as to whether condemning children to be repositories for crack dealers constitutes moral justice.
Plus, when you underline a typo, as I did in my last post, it’s much more embarrassing… 
Actually, that’s a bit of a false dichotomy. I don’t think anyone (except possibly Evil Captor) is arguing that seraching minors is, in and of itself, either wrong or unconsitutional. We needn’t be condemning minors to be repositories for crack dealers if we accept the majority opinion in this case. We’re just setting a higher bar for the search of anyone, adults or minors, than Alito would set.
A bit? Well, either it’s a false dichotomy, or it isn’t.
Except the panel on the Third Circuit was not asked by the litigants to resolve an issue of moral justice; they were only asked to resolve a narrow legal question. Even the loosey-goosiest of “living constitutionalists” would agree that it is improper (outside of a few narrow, technical exceptions) for a court to grant a remedy without first being asked to do so by the litigants before it. If the plaintiffs had made the (admittedly novel) argument to the court that children must be named specifically in a search warrant or the search is invalid, they were free to do so. However, having failed to make that argument, you cannot fault the court for not essentially amending their complaint sua sponte and making the argument on their behalf.
It is not the Third Circuit’s responsibility to craft legal theories upon which to give relief to the plaintiff. It cannot be so; otherwise, how can we say the judiciary is impartial?
Courts resolve the specific questions placed before them by the litigants, no more and no less.
No moreso than his brethren in the majority, who would have also immunized the officer from suit had the warrant incorporated the affidavit by reference.
Ironically, it is Sam Alito whose opinion seeks to apply “common sense” and to place substance over form. It is Sam Alito who is arguing that a typo should not control the outcome of the case at hand, but rather the substance of what actually happened. It is Sam Alito who is saying ignore minor technical flaws and consider the larger picture.
Alito’s dissent essentially says “Hey, the judge signed the affidavit, so that means the judge approved the search and its attachment to the warrant was sufficient to give notice to the searchees. We shouldn’t let what amounts to a typo on the face of the document obscure the fact that a judge did in fact authorize this search and the searchees had adequate notice of that fact.” Given that you don’t want these things to be governed by minor technical flaws, what exactly is your problem with Alito’s dissent?
Because it sets us down the slippery slope of slipshod jurisprudence?
“Yeah, the warrant was signed the day after we searched the guy, but that was just an oversight – anuyone applying ‘common sense’ to the matter would realize we intended to bush 'im anyway.”
And where was all this right-wing love for legal handwaving during the Clinton-Lewinsky bruhaha? “Hey, the guy lied about his sex life; who the frack cares?”
Slippery slope arguments are weak, because everything can be reductio ad absurdum’ed into something nutty. Watch, I can do it to your position as well: “your position puts on a slippery slope where if any officer signs in black ink insteakd of blue, the warrant will be invalid.” Unless you can demonstrate some reason to believe the slope is, in fact, slippery, this isn’t worth addressing.
Furthermore, the two situations are extraordinarly different. The whole point of getting a warrant is to exercise judicial oversight before a search is conducted (FISA warrants notwithstanding). If you can’t see the difference between that and what amounts to a fairly simple typographic error, I’m not sure what to say except that your outlook is hopelessly blinkered.
I also note, BTW, that the cop’s view of reasonableness is not an issue in determining the warrant’s validity for a criminal prosecution – it is only relevant in civil suits against the officer. Even if, theoretically, both your post-hoc warrant scenario was in play and your slipperly slope theory was valid, the Groody dissent would only mean the cop couldn’t be sued, and not that the evidence obtained from the warrant could be used in the criminal trial. Do you believe the exlusionary rule is a disincentive to fourth amendment abuses?
I understand your desire to hijack this discussion away from your clearly untenable position with respect to Groody. However, I am not willing to rise to that bait. If you wish to start another thread comparing the Clinton and Groody, I’ll be quite happy to tell you why you (yet again) have things exactly backwards.
I’m too honest to be a lawyer; all I know is that my vision of the United States is a nation where we err on the side of the individual over the establishment, with such outdated notions like “innocent until proven guilty.” If there isn’t a warrant for searching the ten-year-old daughter, that’s the end of it – anything else is just spin.
(And let’s not lose sight of the fact that Alito’s views in Groody were of the minority. The majority opinion didn’t have a problem saying that the warrant did not authorize the search, and that the omitted language in the warrant was not de to any sort of error.)
And to paraphrase Alito: Why keep brining up the fact that a 10 year old girl was involved. It shouldn’t matter if the person was 10 or 30. what do you have a problem with “no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face.” The majority’s opinion was not that the girl was a minor, and therefore automatically excluded from any search warrant that doesnt name her, as you and some other here seem to be implying. If the warrant stated “all persons”, then she would have been included.
YOU’RE the guys who think that when one says a cop shouldn’t strip search ten year old girls, this somehow consists of a defense of crack mommies. How does the logic of that go, anyway?
Well, there was a warrant. There was also an attached affidavit, signed by the judge, permitting the search of all persons on the premesis, regardless of age. The only question is whether merely attaching that affidavit (without specfically incorporating it on the warrant’s face) is sufficient to create a reasonable belief on the part of the officer that the search is valid.
And again, the age of the searchee has nothing to do with anything in this case.
Neither the majority nor the dissent suggest that the failure to incorporate the affidavit was anything other than an honest error on the part of the officers in question. (Really, what are you suggesting here? That the cops deliberately fucked up their own warrant?)
I also note – YET AGAIN – that the majority does not require that any party to a search be specifically named in the warrant, regardless of age or gender. If the warrant had simply said “see attached affidavit,” then EVEN THE MAJORITY would have approved of the search.
Because if you say that a child cannot be searched, or that the child should be subjected to heightened warrant requirements before a search, you suddenly make that child a very attractive hiding place for contraband.
Just to be clear, I’d like to get you on the record on this question: if the warrant had said “all persons on the premesis” on its face (but without mentioning any person by name), would you have any objection to the searching of Jane and Mary Doe in this case?
Yes, the essence of our argument is that I feel a strip search of a minor should require a warrant. You have argued that it does not, and apparently you are right. Cops can strip search minors without warrants that specifically authorize such searches (i.e., naming the minors involved and why they should be strip searched. (Whips out tiniest conceivable American flag, waves it disconsolately.) Yay! You win. Cops can strip search minors with “reasonable expectations” and nothing more. What a victory for America and American values! Aren’t you PROUD? I’m sure Judge Alito is thrilled senseless.
So often we have seen legal scholars and judges disagree over the law. Very often when they feel compelled to support what they feel is a miscarriage of justice, they write stinging rebukes to the law and the officers in their decisions. My suspicion is that Alito didn’t give a shit about some crack mommy’s kid. It is consistent with the general dislike of women and minorities, in his decisions, and his general willingness to support the cops no matter what.
You just said “Boo!” again. I have explained why I was unmoved by your initial cry of “Boo!” I do not know why you would think a second one would work.
Of the minor? Definitely! Mommy maybe not so much. She was presumably at the crack house voluntarily.
So, a drug dealer knowing this could keep a child within reach at all times holding his stash and there isn’t a thing anyone could do about it without a hightened search warrant naming said child. If you were in charge, and I were a drug dealer, I know I would do just that. Too bad you would give me a reason to subject a child to such. You must be proud. :rolleyes:
Here, let me accompany you … (whips out world’s tiniest violin).
C’mon, Liberal, you aren’t dumb enough to accept all the mealymouthing that judges and cops do when they’re doing something wrong at face value, do you? Think “crocodile tears.”
OK, so at least you agree that it is black-letter law that a target of a search does not necesarily have to be specifically named in a warrant, so long as that person is adequately described in other terms (e.g., “persons on the premesis”). So tell me again why you’re upset that Alito not only failed to join the majority, but also didn’t write a stinging rebuke of what is longstanding, well-established, black-letter law?
Well, no. You are (deliberately?) misunderstanding the standard here. A cop still needs a warrant to perform a search. Judicial oversight is still a necessary component.
Where “reasonable expectations” comes into play is when the cop gets sued over some defect in the warrant. The question is whether the cop reasonably believed that the warrant authorized a particular search. And certainly a cop who failed to get a warrant entirely could claim no such reasonable belief.
So now you’re faulting Alito for what he didn’t write? Are you saying that any judge who fails to vociferously adopt your blinkered view of the fourth amendment with respect to minors, and who fails to write ober dicta about it in every fourth amendment case that comes before them, is unfit for the Supreme Court?
Cite? Really, you’re just venting here. This “argument” (which, as best as I can surmise, is “Judge Alito is eeeeeeeeevil”) is pathetic, more suited to the Pit than to GD.
Can you show me where my logic is faulty? Somehow I doubt it. If X is harder to legally search, X becomes a more attractive hiding place.
And…why? Why do minors get this stricter warrant process in your dreamworld?
I’m pretty sure I’m not the only one who feels it’s wrong. Which gives me hope.
Oh, puh-leeze. Judges put all sorts of bullcrap in their decisions. Ya’d think a wonderful guy like Alito might at least have observed that allowing searches of minors on grounds of “reasonable niceness” (or whatever the phrase is) just MIGHT be a bad way for a free society to go.
Does impartial really mean “Indifferent to morality and common sense”? Who knew?
Sure, that’s why so many judges view things like “three strikes laws” with such relief. It helps create a more robot-like judiciary.
You missed a step here, Dewey … there’s no allegation that I’m aware of that mommy was a crack dealer … coulda been a customer or a … get this … innocent bystander, like her kid. Therefore, innocent mommy isn’t necessarily hiding crack in kids. Do you seriously mean to suggest that I advocate that crack dealers should be allowed to hide drugs in kids? (Earth calling Dewey, Earth calling Dewey … )